A Good Walk Spoiled: Golf Outing Sinks FMLA Claim

Darrell VanDeusen
Darrell VanDeusen

Honest belief” cases can be difficult for an employer to win on summary judgment.  The concept is that, even if the employer was wrong, it honestly believed that an employee should have been fired, so there was no intent to discriminate.  FMLA honest belief cases are among the most interesting.

On one hand, there are lots of things an employee on FMLA leave may still be able to do while complying with the requirements of his or her leave.  You need not sit home alone in the dark.  On the other hand, an employer may legitimately fire someone when off duty behavior suggests dishonesty related to the employee’s leave request.

Things did not work out so well for David Sharrow, however, when his employer S.C. Johnson & Son fired him for golfing while on FMLA leave for foot pain and a chronic knee condition.  Sharrow v. S.C. Johnson & Son, Inc., 2018 U.S. Dist. LEXIS 62044 (E.D. Mich. Apr. 12, 2018).

Sharrow worked as a technician.  He got a doctor’s note that said he needed to be off for two weeks for medical reasons, and explained to the company nurse that it was because he had knee and toe issues.  Sharrow also applied for FMLA leave.

A couple days after his FMLA leave began, Sharrow participated in a charity golf tournament and – wait for it – his foursome won it.   Then he went whitewater rafting on the Rifle River.  How, one might ask, did his employer learn about this?   FACEBOOK.  Yes, social media is the gift that keeps on giving.

After Sharrow’s return to work from his two weeks of FMLA leave – without any restriction – he was told of the discovery of his actions while on leave.  He admitted to “participating” in the golf tournament and rafting down the river.  His protected FMLA leave for these two weeks was denied and he was placed on “Decision Making Leave” for “Sick Benefit Fraud Violation.”

Sharrow committed to doing better and understood that another violation of company policy would result in termination.  One month later, he was caught sleeping on the job and was fired.

Sharrow sued for alleged violation of the FMLA and state disability law violations.   The court granted S.C. Johnson’s motion for summary judgment.  Sharrow claimed that he only drove the cart and walked up to the greens to watch other members of his foursome putt.   But the tournament was a scramble format, and that means everyone plays.  Even if Sharrow had said more than that he “participated” and that he just “rode around in the cart,” that wasn’t the same thing as affirmatively saying he did not play golf, said the court.   His supervisor “would not have reasonably concluded that he simply observed other players golfing while he remained in the cart.”   As to the rafting trip, Sharrow claimed it was only a “float” and that all he did was sit in the raft with his feet over the side.

The court found that Sharrow’s story did not overcome the FACEBOOK pictures and posts or his own admissions.  His supervisor’s honest belief that Sharrow had committed FMLA fraud was sufficient to support the company’s actions.


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